The treatment of non-financial misconduct, such as emotional abuse, coercive control, or deception, within financial remedy proceedings remains a contentious and evolving area of family law. Section 25(2)(g) of the Matrimonial Causes Act 1973 (“MCA 1973”) permits courts to take account of a party’s conduct “if that conduct is such that it would in the opinion of the court be inequitable to disregard it.” However,courts have struggled to define the threshold at which such misconduct becomes relevant and to determine whether moral wrongdoing, absent a quantifiable financial consequence, should influence the redistribution of assets.

While early authorities permitted consideration of grave non-financial misconduct, more recent case law reflects judicial reluctance to expand the provision’s scope. The resulting inconsistency creates uncertainty both for practitioners and for clients seeking justice in emotionally charged divorces.

The legal framework and evolution of conduct under Section 25(2)(g)

Historically, conduct was interpreted narrowly. In Wachtel v Wachtel [1973] Fam 72, the Court of Appeal held that only behaviour that was “obvious and gross” could justify an adjustment to financial awards. This restrictive stance was reiterated in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618, where the House of Lords confirmed that misconduct would rarely be relevant and that financial remedies should primarily focus on need, compensation, and sharing, not moral censure.

Despite this, certain cases have recognised that non-financial misconduct can, in exceptional circumstances, be “inequitable to disregard.” In H v H (Financial Relief: Attempted Murder as Conduct) [2005] EWHC 2911 (Fam), an attempted murder by one spouse clearly warranted a departure from equality, even though the conduct was not directly financial in nature. Similarly, in FRB v DCA (No. 2) [2020] EWHC 754 (Fam), the husband’s deception over the paternity of a child was deemed sufficiently serious to justify reducing the wife’s award,not withstanding the absence of a calculable financial loss.

However, a more restrictive trend has emerged. In OG v AG (Financial Remedies: Conduct) [2020]EWFC 52 and N v J[2024] EWHC 388 (Fam), the courts held that for conduct to be considered, it must produce a tangible financial consequence.This shift arguably narrows the statutory test by importing a financial requirement not expressed in the text of section 25(2)(g).

The emerging judicial divide

The current judicial landscape is marked by a clear divergence. One school of thought accepts that egregiousmoral or emotional wrongdoing may itself justify an adjustment, recognising that certain conduct, such as coercive control, deception, or prolonged emotional abuse, may be so destructive to the marital relationship that disregarding it would offend justice. The other, more dominant, approach insists that relevance arises only where misconduct has directly affected the marital finances, such as the dissipation of assets or deliberate financial concealment.

This divergence creates adoctrinal and practical dilemma. On one hand, requiring a financial link preserves judicial efficiency and discourages vindictive litigation over moral grievances. On the other, it risks ignoring profound harms that may not translate neatly into monetary terms, leaving victims of emotional or psychological abuse feeling legally invisible.

Policy and ethical considerations

The judicial caution in expanding section 25(2)(g) is not without justification. Courts are rightly wary of opening the floodgates to minor or exaggerated allegations that could transform financial remedy proceedings into forums for moral punishment. This would undermine the principle that divorce law in England and Wales is not fault-based, and that financial relief exists to ensure fairness, not retribution.

Yet, the restrictive trend raises concerns of its own. Emotional abuse and coercive control are now widely recognised in both criminal law and public policy as forms of serious harm. To disregard such behaviour in financial remedies may appear inconsistent with contemporary understandings of relational harm and domestic abuse. Moreover, arigid financial requirement arguably distorts the statutory purpose of section25(2)(g), which focuses on equity, not economic quantification.

There is also a potential human rights dimension. The failure to acknowledge the impact of severe emotional abuse could, in principle, engage rights under Article 8 of the European Convention on Human Rights, which protects respect for private and family life. A system that overlooks the lived experience of victims risks perpetuating injustice under the guise of neutrality.

Practical implications for practitioners

For family law practitioners, this uncertainty poses a significant challenge. Clients frequently believe that adultery, emotional cruelty, or coercive behaviour will automatically reduce their spouse’s financial entitlement. However, in practice, unless the conduct meets the “inequitable to disregard” threshold, and, according to some recent judgments, produces a measurable financial effect, it will rarely alter the award.

This disconnect between client expectation and judicial reality demands careful management. Lawyers must communicate the limits of the law sensitively yet clearly, explaining that financial remedies are not designed to punish wrongdoing but to achieve a fair economic outcome. At the same time, practitioners must remain alert to cases where conduct may legitimately cross the threshold, particularly where it involves deliberate deception or violence.

Towards a clearer approach

The statutory language of section 25(2)(g) suggests that Parliament intended flexibility rather than financial rigidity. A balanced approach would allow courts to recognise serious non-financial misconduct in exceptional cases while maintaining a high threshold to prevent abuse of the provision. Clear appellate guidance would help reconcile the competing authorities and provide much-needed predictability for litigants and advisers alike.

Final thoughts

The question of whether non-financial misconduct can influence financial remedy awards under section25(2)(g) MCA 1973 remains unsettled. While early cases recognised that egregious behaviour could justifiably affect outcomes, modern judgments have reintroduced a financial requirement that arguably strays from the statutory text.

Ultimately, the law must strike a delicate balance: it should not turn financial remedy proceedings into instruments of moral retribution, but neither should it ignore serious forms of emotional harm that offend equity and justice. Greater appellate clarification is essential to restore consistency, ensure fairness, and reflect the evolving understanding of non-financial abuse within the family justice system.